ex10-2.htm


    Exhibit
10.2

     

    
      	
               

               

              David
      R. Shaub

              Leslie
      G. Williams

              Lisbeth
      Bosshart

               

              Stephen
      D. Morgan

              Diana
      Olyai

               

               

            	 
      	
              SHAUB
      & WILLIAMS LLP

              Attorneys
      at Law

              12121
      Wilshire Boulevard, Suite 205

              Los
      Angeles California, 90025

               

              Telephone:  (310)
      826 - 6678

               Facsimile:  (310)
      826 - 8042

              E-Mail
      : Lawfirm@sw-law.com

            	 
      	
               

               

               of  Counsel

               Edward
      Everett Vaill

              Donald
      G. Davis

              Alice
      A. Sun

              Jennifer  McCallum*

              *
      Patent Attorney admitted in
      Colorado

              David
      Rosenbaum**

              **
      Patent Attorney admitted in
      Illinois

               

            
	 
      	 
      	 
      	 
      	 
      


    

    


    


    December
7, 2009

    


    Mark
Severini, CEO

    Modavox,
Inc.

    135 West
20th
Street

    5th
Floor

    New York,
NY 10011

    


    


    Re:
Amendment to Attorney-Client Hourly Fee Agreement

    


    Dear Mr.
Severini:

    


    INTRODUCTION

    


    On April 9, 2008, Modavox, Inc. (the
“Company”) entered into an Attorney–Client Fee Agreement (the “Agreement”) with
Shaub & Williams (S&W) and Rosenbaum & Associates (R&A) (S&W
and R&A collectively, “Attorneys”) pursuant to which the firms agreed to
provide legal services to the Company commencing as of the date of the
Agreement.

    


    COMPENSATION

    


    It is our understanding that the
Company wishes to pay for some of the services rendered under the Agreement
using shares of the Company’s common stock with registration rights on Form
S-8.  Therefore, this Amendment shall amend our Agreement to provide
for the registration on Form S-8 of shares of common stock of the Company
issuable to David R. Shaub, a principal of Shaub & Williams.  As
described below, such shares will be sold by Mr. Shaub and the proceeds of which
will be used to pay S&W and R&A invoices per the same hourly terms as
contained in the Agreement.  Except as modified herein the original
Agreement remains in force.

    


    In connection with the Agreement,
the Company has agreed to register on Form S-8 541,771 shares of common stock of
the Company issued to David R. Shaub, which number of shares is based upon
assumptions as to anticipated fees and expenses to be incurred and invoiced by
S&W and R&A through June, 2010, and with the number of shares to be
issued based upon the average closing price of Modavox stock for the 30-day
period preceding the date of this Amendment ($2.23 per
share).  Following the S8 Registration, the Company agrees to
compensate S&W and R&A for services rendered pursuant to the Agreement
in accordance with the following terms:

    


    
      
        
        

      

      
        -1-

        
          

        

      

      
        
        

      

    

    
      	
               
      

            	
              o

            	
              Attorneys’
      billed services, expert costs and out-of-pocket expenses will be invoiced
      monthly and payable from proceeds (after trading commissions) generated
      from the sale of Modavox common stock registered under the above
      referenced Form S-8 Registration and issued to David R. Shaub pursuant to
      this Amendment, as described herein (“Compensation
    Shares”).

            


    

    


    
      	
               
      

            	
              o

            	
              Subject
      to the “Insider Trading Restrictions” described below, all Compensation
      Shares shall have no lock-up period and Mr. Shaub shall have the right on
      behalf of S&W and R&A to trade such Compensation Shares on the
      public securities markets upon the earlier to occur of: (i) the
      effectiveness of the Registration Statement on Form S-8; or (ii) the
      expiration of the holding period required by Rule 144 of the Securities
      Act of 1933 and until all such shares issued are
  sold.

            


    

    


    
      	
               
      

            	
              o

            	
              Our
      current hourly rates are as
follows:

            


    

    


    
      
        
          	
                  Partners:

                	
                  $400-$450

                
	
                  Associates:

                	
                  $200-290

                
	
                  Clerks/Paralegals:

                	
                  $150-185

                


        

      

    

    


    These
rates are subject to change periodically based upon prevailing market
conditions.

    


    All other compensation for each
matter that we have been or may be requested to handle for the Company shall be
payable as to each matter in accordance with the terms of the
Agreement.

    


    Attorneys acknowledge the provisions
of the securities laws which preclude trading on inside information, including
specifically Section 10b and Rule 10b(5) under the Securities and Exchange Act
of 1934, and agree to abide by all such laws.  In furtherance of this
objective, Attorneys agree that Compensation Shares will be sold for the purpose
of paying Attorney invoices as described above pursuant to a properly
established SEC Rule 10b(5)-1 Stock Selling Plan (“10b(5)-1 Plan”), which
10b(5)-1 Plan will be established with and managed by Fidelity.  As
required by such 10b(5)-1 Plan, the trading schedule described therein, and any
amendment thereto (collectively with the Company’s “Insider Trading Policy,” a
copy of which has been provided to Attorneys, the “Insider Trading
Restrictions”), must be approved by Modavox in writing.  Attorneys
agree to hold unsold shares in trust until such time as a bill is either
outstanding or current costs are incurred or fees earned.  Attorneys
reserve the right to require, and anticipate the need for, deposits or advances
for fees, costs and expenses as they are or will be incurred or paid once all
Compensation Shares of Modavox, Inc. issued to them are sold or can no longer be
sold on the open market.

    


    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

    Notwithstanding the payment of any
retainer now or hereafter made by Company, Company agrees to pay Attorneys’
billing statements in full in accordance with the terms of this Agreement so
that all retainers, advances or deposits are replenished from time to
time.  Any balance of any retainer, advance or deposit after
Attorneys’ final billing will be refunded or paid to Company.

    


    Attorneys will incur various costs
and expenses in performing legal services under this
Agreement.  Company agrees to pay for all such costs and
expenses.  Attorneys agree to seek payment of such costs from the
Compensation Shares as long as such shares have not already been sold to cover
earlier fees and/or costs and as long as such shares can be sold on the open
market.

    


    ETHICAL
CONSIDERATIONS

     

    Rule
3-300 of the California Rules of Professional Conduct applies to situations,
like the one at hand, in which an attorney acquires an ownership interest in a
client.  The rule requires that the terms of the transaction be fair
and reasonable to the client, be fully disclosed and transmitted in writing to
the client, and be understood by the client.  It also requires that
the client be advised that it may seek the advice of an independent lawyer of
the client’s choice and be given a reasonable opportunity to seek that
advice.  Finally, it requires that the client consent to the
transaction in writing.  Rule 3-300 of the California Rules of
Professional Conduct is attached to this Amendment as Appendix A.

     

    One of
the purposes of this Amendment, therefore, is to comply with the requirements of
Rule 3-300.  Accordingly, before signing this Amendment, please review
it carefully to make sure you fully understand its terms and are confident that
those terms are fair and reasonable.  We suggest that the Company
consult with independent counsel to assist the Company in determining whether to
accept the terms of the purchase of the securities.  The Company
hereby acknowledges that it has been afforded a reasonable opportunity to
consult with independent counsel regarding this transaction.

     

    David R.
Shaub, a partner of S&W, will be acquiring the Compensation Shares for the
purpose described herein.  By its execution below, the Company hereby
acknowledges the foregoing economic interests and confirms its consent to
acquisition of the  Compensation Shares by David R.
Shaub.

     

    As we
have previously advised you, the ownership interests in the Company to be held
by David R. Shaub create certain potential conflicts of
interest.  Specifically, our interests as shareholders of the Company
might be perceived as affecting our ability to give impartial, disinterested
legal advice.  For example, our advice regarding a given matter might
be perceived as being colored by our determination of the likely upside to
equity and attendant risks.  While we would not accept ownership
interests in the Company if we felt that, by doing so, we could not continue to
adequately represent the Company’s interests, it is possible that our economic
interest in the Company will leave you uncomfortable with our representation,
possibly at an inopportune time.  Moreover, we may reach the
conclusion that the existence of our economic interest makes it inappropriate to
advise the Company with respect to issues that might arise, thus requiring it to
retain different counsel, possibly at an inopportune moment, to advise it on
such matters.  So that we may continue to represent you, we are also
asking the Company by your signature below to waive any conflict that has arisen
in the past or that might arise hereafter by virtue of the status of David R.
Shaub as the holder of the Compensation Shares.

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

    If, after
careful consideration, you determine that this letter accurately reflects your
understanding of our agreement, please acknowledge your approval and acceptance
of these terms by signing and returning the enclosed copy of this
letter.

    


    Very
truly yours,

    


    SHAUB
& WILLIAMS LLP

    


    By:                                        


    Partner
of Shaub & Williams LLP

    


    THE
UNDERSIGNED HEREBY AGREES THAT THE TERMS AND CONDITIONS SET FORTH IN THIS LETTER
SHALL APPLY AS PROVIDED HEREIN TO THE PURCHASE, HOLDING AND DISPOSITION OF THE
COMPENSATION SHARES BY DAVID R. SHAUB, CONSENTS TO THE ACQUISITION OF THE
COMPENSATION SHARES, AND WAIVES ANY CONFLICT OF INTEREST THAT HAS ARISEN IN THE
PAST OR THAT MIGHT ARISE HEREAFTER BY VIRTUE OF THE REPRESENTATION OF THE
COMPANY BY THE LAW FIRM WHILE THE LAW FIRM OR ITS PARTNERS HOLD ANY OWNERSHIP
INTEREST IN THE COMPANY.

    


    BY
SIGNING THIS AMENDMENT, AND AS FURTHER SET FORTH IN THE AGREEMENT, THE PARTIES
AGREE TO BINDING ARBITRATION OF DISPUTES, WHETHER AS TO FEES, QUALITY OF
SERVICES RENDERED, THE ARBITRABILITY OF THE DISPUTE, ANY MATTER RELATING TO THE
COMPENSATION SHARES, OR OTHERWISE, AND GIVE UP THEIR RESPECTIVE RIGHTS TO A JURY
OR COURT TRIAL, AND WAIVE THEIR RESPECTIVE RIGHTS TO PROCEED UNDER THE
ARBITRATION PROVISIONS OF THE STATE BAR ACT, CALIFORNIA BUSINESS AND PROFESSIONS
CODE SECTIONS 6200, ET SEQ.  THE COMPANY ACKNOWLEDGES THAT IT HAS BEEN
ADVISED BY THE LAW FIRM, AND HAS BEEN AFFORDED THE REASONABLE OPPORTUNITY, TO
HAVE THIS TRANSACTION AND THIS AMENDMENT REVIEWED BEFORE EXECUTION BY
INDEPENDENT COUNSEL ACTING ON ITS BEHALF.

    
 

    MODAVOX,
INC.

    


     

     

    Mark
Severini

    CEO of
Modavox, Inc.

    


    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

    APPENDIX
A

    


    


    California
Rules of Professional Conduct

    


    ---------------------------------------------

    


    RULE
3-300. AVOIDING INTERESTS ADVERSE TO A CLIENT

    


    A member
shall not enter into a business transaction with a client; or knowingly acquire
an ownership, possessory, security, or other pecuniary interest adverse to a
client, unless each of the following requirements has been
satisfied:

    


    (A) The
transaction or acquisition and its terms are fair and reasonable to the client
and are fully disclosed and transmitted in writing to the client in a manner
which should reasonably have been understood by the client; and

    


    (B) The
client is advised in writing that the client may seek the advice of an
independent lawyer of the client’s choice and is given a reasonable opportunity
to seek that advice; and

    


    (C) The
client thereafter consents in writing to the terms of the transaction or the
terms of the acquisition.

    


    


    
      
        
        

      

      
        -5-